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Strike on the NHS

It will be hard to escape the current furore between the Government and the medical profession, as junior doctors are enraged by the Government's proposed changes in respect of their contracts of employment. The Government drew up plans to change contracts for junior doctors in 2012 but in 2014 talks broke down. However the government has now indicated that it will impose a new contract on junior doctors in England in August 2016 and consequently the British Medical Association Junior Doctor's Association balloted its members on industrial action.

Junior doctors make up almost half of the medical workforce in England, and given that they deem the proposed new contract to be wholly detrimental to them; unsafe to patients; and discriminatory to female doctors (who they allege would be disadvantaged by taking time out to have a family if the current system of guaranteed pay increases linked to time in the job is to be replaced with a system linked to progression through set training stages), one could argue that it is no great surprise that there was a landslide vote in favour of industrial action in November 2015. Some 98% of junior doctors voted in favour of a full strike and 99% in favour of action just short of a full strike.

When junior doctors in England went on strike on 12 January 2016 this was the first time that this had happened in more than four decades. There had been a further strike planned for 26 January 2016 but this was suspended, however on 10 February 2016 junior doctors who provide only emergency care will take part in further industrial action for 24 hours.

This poses questions about what this means for patient safety. What, if any, repercussions could it have for the junior doctors? and what steps can and should the Government take? These are questions that the Government will need to answer and imminently so, but this situation also raises legal questions about industrial action, in particular what it is and what is not permissible?

Although there is no statutory definition of industrial action, as a general guide, any concerted action which is taken in order to put pressure on an employer is capable of being industrial action. Industrial action includes strikes; work to rule; overtime and call out bans; and 'go slow'. Each of these measures can be disruptive to a business/public service, albeit such action may not automatically amount to a breach of contract.

Where industrial action is unofficial, an employee who is dismissed during the time that he/she was taking part in that action will not be entitled to bring an unfair dismissal claim (section 237 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)). However, subject to certain exceptions, the dismissal of an employee will be automatically unfair if the reason for the dismissal is that the employee took part in official industrial action which is also protected i.e. the action has been called by a trade union, and the trade union complied with all the balloting and notification rules.

Legal remedies against employees taking industrial action are limited. The court cannot order an employee to work or attend the workplace, and because of the practical difficulties of establishing the precise extent (if any) of the loss caused by each employee engaged in the industrial action, damages is not an effective remedy. However that is not to say that employees who take industrial action do not suffer any repercussions because, if they are in breach of contract, the employer can legitimately withhold all or part of their pay; industrial action may affect the employee's continuity of employment and the right to redundancy pay; and detriment short of dismissal could be enforced by the employer. This means that, in theory, employers could threaten workers with loss of hours, benefits, overtime or opportunities for promotion. It is arguable that the UK law in this regard would breach the European Convention on Human Rights, but in any event employers should also be alert to the possibility of the employee claiming constructive dismissal if it were to take such action.

In the case of the junior doctors, as any industrial action will be 'official' the doctors will be protected against dismissal, however inevitably any strike should be avoided so as to ensure the safety of those availing of medical care during this time. We will have to wait and see what the outcome of 10 February 2016 is.